IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 9^th OF NOVEMBER, 2022 MISC. APPEAL No. 4457 of 2022 BETWEEN:-

THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISION OFFICE-2, CHAMBER BHAWAN, CIVIL CENTRE, MARHATAL, JABALPUR, THROUGH ASSISTANT MANAGER THE ORIENTAL INSURANCE COMPANY LTD., T.P. HUB, 1561, NAPIER TOWN, DR. BARAT ROAD, RUSSEL CHOWK, JABALPUR, (MADHYA PRADESH)

.....APPELLANT (BY SHRI K.K. SINGH, ADVOCATE)

AND

1. GAYA PRASAD SAHU S/O GUTHALU PRASAD SAHU, AGED ABOUT 39 YEARS, R/O GRAM SAARASDOLI, POLICE STATION MEHADWANI, TEHSIL SHAHPURA, DISTRICT DINDORI (M.P.)

(MADHYA PRADESH)

2. SMT. DUJIYA SAHU W/O GAYA PRASAD SAHU, AGED ABOUT 37 YEARS, R/O GRAM SAARASDOLI, POLICE STATION MEHADWANI, TEHSIL SHAHPURA, DISTRICT DINDORI (MADHYA PRADESH)

3. MOHAN SAHU S/O GAYA PRASAD SAHU, AGED ABOUT 18 YEARS, R/O GRAM SAARASDOLI, POLICE STATION MEHADWANI, TEHSIL SHAHPURA, DISTRICT DINDORI (M.P.)

(MADHYA PRADESH)

4. RAJU SAHU S/O THROUGH NATURAL GUARDIAN GAYA PRASAD SAHU S/O GUTHALU PRASAD, AGED ABOUT 16 YEARS, R/O GRAM SAARASDOLI, POLICE STATION MEHADWANI, TEHSIL SHAHPURA, DISTRICT DINDORI Signature Not Verified SAN (MADHYA PRADESH)

5. GATHALU SAHU S/O SHRI MIHILAL SAHU, AGED ABOUT 65 YEARS, R/O GRAM SAARASDOLI, POLICE STATION MEHADWANI, TEHSIL SHAHPURA, DISTRICT DINDORI (MADHYA PRADESH)

6. SMT. MATHURA BAI W/O SHRI GUTHALU SAHU, AGED ABOUT 60 YEARS, R/O GRAM SAARASDOLI, POLICE STATION MEHADWANI, TEHSIL SHAHPURA, DISTRICT DINDORI (MADHYA PRADESH)

7. ABHISHEK KUMAR BHOJAK S/O ONKAR PRASAD BHOJAK OCCUPATION: OWNER OF BUS BEARING REGISTRATION NO. MP 20 PA/1040 R/O H.NO. 399, SARAFA KHATEEK MOHALLA, KOTWALI, DISTRICT JABALPUR (MADHYA PRADESH)

8. RAJENDRA PRASAD ALIAS BHURA S/O SHRI P.

SINGH OCCUPATION: DRIVER OF BUS BEARING REGISTRATION NO. MP 20 PA/1040 R/O GADARWARA, DISTRICT NARSINGHPUR AT PRESENT R/O GRAM PIPARIYA POST BIJOURI, POLICE STATION CHARGAWAN. DISTRICT JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI UDAY KUMAR, ADVOCATE FOR RESPONDENTS NO.1 TO 6)

This appeal coming on for hearing on. this day, the court passed the following:

ORDER

This miscellaneous appeal is filed by the insurance company being aggrieved of award dated 30/06/2022 passed by learned 7th Additional Motor Accident Claims Tribunal, Jabalpur in MACC No.1027/2018.

This appeal is filed only on two grounds namely owner and driver of the offending vehicle were ex-parte before the Claims Tribunal, therefore, no effective order of pay and recover can be made by the Tribunal as it will make recovery of the amount difficult for the insurance company.

Signature Not Verified SAN Reliance is placed on the judgment of Constitution Bench of Kerala High Court in the case of Pareed Pillai Vs. Oriental Insurance Co. Ltd., 2019 ACJ 16. Placing reliance on para-24, it is submitted that in absence of the owner, driver of the vehicle who did not contest the case, no order of pay and recover should have been made. Similarly, reliance is placed on the Division Bench Judgement of this Court in the case Raji Bai and others Vs. New India Assurance Co. Ltd. and others, 2008 ACJ 2017 to buttress his claim.

Shri Uday Kumar, learned counsel for the respondents/claimants supports the award.

On perusal of the impugned award reveals that insurance company admitted the factum of insurance. Only dispute is in regard to valid permit on the date of accident, as a result of which learned Claims Tribunal passed an order of pay and recover. In the case of Pareed Pillai (supra), in para-24 it has noted a fact that "owner and driver of the vehicle did not contest the matter nor did they produce copy of the policy, if any. Pleadings of the insurer/appellant stand uncontroverted." Thus, in absence of policy brought on record by any of the parties and thus, denial of insurance company in that case about existence of a policy was a fact situation which resulted in a finding that no order of pay and recover could have been passed in absence of the policy. But, in the present case pol